SURAJ BUX SINGH Vs. BADRI PRASAD

JUDGEMENT

(1.) 1. These three cases raise a Similar question of law. Because an important question of law is involved in these cases they were referred to a larger Bench. Thus they came up for hearing before us.

(2.) THE facts from which Civil Revision No. 86 of 1961 arises are these. A money decree was passed by the Judge, Small Cause Court, Lucknow. In favour of the opposite party, Badri Prasad against the applicant, Suraj Bux Singh on 29-4-1958. On 1-11-1958 an application was made for transfer of the decree to the Munsif's court under Section 59 of the Code of Civil Procedure. The transfer was ordered on 29-11-1958 but a transfer certificate was actually sent to the Munsif's court on 9-12-1958. On 29-2- 1960 the decree-holder made an application to the Munsif for execution of the decree by attachment and sale of immoveable property. The judgment-debtor filed an objection under Section 47, Code of Civil Procedure, on the ground inter alia that the execution was barred by limitation. The learned Munsif did not consider the question of limitation and passed a short order allowing the objection and directing that the execution case be consigned to records on the ground that the decree was of a Small Cause Court and execution could not proceed against immoveable property in view of Section 42 of the Code of Civil Procedure by which he probably meant Section 42 as amended in its application to Uttar Pradesh by the U.P. Civil Laws (Reforms and Amendment) Act, 1954. This plea was not taken in the objections under Section 47 but the Munsif himself considered this point and held that execution could not proceed against immoveable property. Aggrieved by this order the decree-holder went in appeal. The lower appellate court held that because the decree was passed in the year 1952 i.e., before the amendment of Section 42 of the Code of Civil Procedure, a right had vested in the decree-holder to obtain transfer of his decree to a Munsif's court and to execute it by attachment and sale of immoveable property and this right was saved by Section 3 of the aforesaid Act. The appeal was therefore allowed and the Munsif was directed to restore the execution case and the miscellaneous case relating to the objection under Section 47, and after considering the ground of limitation raised by the judgment-debtor, to proceed with the matter according to law. As against this order the Judgment-debtor has come in.revision.

(3.) IN the third case also which gives rise to Second Execution of Decree Appeal No. 5 of 1964 a money decree was passed by a Judge, Small Cause Court, on 27-8-1953. The decree was transferred to a Munsif and one-fourth share of the judgment-debtor in a house was attached and sold on 14-9-1960, The decree-holder himself purchased the property and the sale was confirmed on 10-11-1960. Possession was delivered to the decree-holder through court on 21-9-1981. After this, on 27-10-1961 the judgment- debtor made an application for restoration of possession on the ground that the sale was a nullity inasmuch as immoveable property could not be attached in execution of a decree of the Small Cause Court. The munsif upheld the objection of the judgment-debtor and set aside the sale holding it as void and inoperative. The decree-holder was directed to redeliver possession of the property to the judgment-debtor. The decree-holder went in appeal but it was dismissed and the judgment of the Munsif was confirmed. Aggrieved by this order of the lower appellate court the decree-holder has come in second appeal.